The Questions Following Aaron Swartz's Death

The suicide of Aaron Swartz
last week has brought attention to a lot of things in need of
immediate and substantial change: the unchecked power of ambitious,
self-serving federal prosecutors; the curious disconnect between
the ferocity with which those prosecutors hunted down a
20-something political activist, and their respectful reluctance to
disturb the potentates of Wall Street; the absurdity of our current
copyright laws; ditto, the outmoded laws still on the books with
respect to “hacking.”

There’s also an important point to reiterate. I’ve seen a number
of angry commenters on Twitter and elsewhere claiming that JSTOR
“has blood on its hands.” This is false. JSTOR declined involvement
in the prosecution from the outset, issuing an immediate statement
to this effect on its website. JSTOR’s attorney, Mary Jo White
(herself a former federal prosecutor), called prosecutor Stephen
Heymann and
asked him to drop the case, according to Swartz’s lawyer,
Elliot Peters; JSTOR’s Heidi McGregor confirmed this by phone.

The culpability of MIT, however, whose network Swartz accessed
in order to conduct his maybe-somewhat-illegal-ish download, is a
more complicated matter. MIT president L. Rafael Reif
announced that the university would investigate its role in the
Swartz affair. A number of observers have surmised that without
MIT’s eager handing over of evidence to the Feds, the
prosecution against Swartz might well have stopped in its tracks;
others
point out that having once called the Feds in, it might not
have been so easy to call them off again.

Many who looked into the case, myself included, simply didn’t
believe the government could possibly succeed in its prosecution of
Aaron Swartz; learning of the details after his death, I am sorry I
dismissed that possibility. Writing in the Daily Beast, Michael
Moynihan
shed light on Swartz’s exact position:

Swartz’s lawyer said that his team rejected a plea deal which
would have put his client behind bars for six months. The deeper
issue, one largely ignored by his legion of online surrogates, is
made cogently by [the crooked but unrepentant newspaper magnate
Conrad] Black [who
is in a position to know]: “[In the United States] prosecutors
win 95 percent of their cases, 90 percent of those without a trial,
and people who exercise their constitutionally guaranteed right to
go to trial receive more than three times the sentence they receive
if they cop a plea, as a penalty for exercising their rights.” In
other words, if Swartz wanted to demonstrate his innocence—and
potentially not be branded a convicted criminal—those 6 months
could have quickly mushroomed into six years.

Beyond this, one must ask what additional pressures a government
hell-bent on the prosecution of whistleblowers and hackers might
have brought to bear on this fragile young man, who is known to
have been a sufferer from depression. How would Swartz, a champion
of openness and freedom of information, have stood up to such
pressure?
A 2011 investigation by the Guardian (“One in four US
hackers ‘is an FBI informer'”) concluded that “[c]yber policing
units have had such success in forcing online criminals to
co-operate with their investigations through the threat of long
prison sentences that they have managed to create an army of
informants deep inside the hacking community.” Both the FBI and the
Secret Service are named in this piece. Marcy Wheeler, who blogs at
emptywheel, noted the
early involvement of the Secret Service in Swartz’s prosecution
in a recent post, raising a point that I hope will get a whole
lot of traction in the days to come: “I want to know whether
MIT—which is dependent on federal grants for much of its
funding–brought in the Secret Service.” I’d also like to know
exactly what the Secret Service had to say to Aaron Swartz.